//
[2025] NSWSC 775
General information, not legal advice.
Supreme Court of NSW
2025-07-22
Walton J
Original judgment source is linked above.
Zoe will write a short plain-English summary of this judgment and email it to you for free: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Flecknoe v Pared Ltd [2025] NSWSC 775
Hearing dates: 7 July 2025
Date of orders: 22 July 2025
Decision date: 22 July 2025
Jurisdiction: Common Law
Before: Walton J
Decision: The defendant shall bring in Short Minutes of Order reflecting this judgement within 7 days of the date of delivery of this judgement which shall include:
(1) If there is joint acceptance of the preliminary view as to costs, the Short Minutes of Order should reflect the agreement of the parties.
(2) If there is a dispute as to costs, the defendants shall file and serve the order they propose as to costs accompanying the Short Minutes of Order together with short written submissions in support of the same, and the plaintiffs shall file and serve their reply submissions and the orders they propose within a further 7 days.
(3) Subject to the above, costs are reserved.
Catchwords: CIVIL PROCEDURE – Pleadings – Application to strike out proceedings – Whether pleadings disclosed no reasonable cause of action – Whether pleadings embarrassing – Strike out motion dismissed
CIVIL PROCEDURE – Pleadings – Particulars – Alternative motion – Order sought for further particulars – Whether further particulars required – Where plaintiff conceded further particulars should be provided – Order for further particulars made
Legislation Cited: Civil Liability Act 2001 (NSW)
Felons (Civil Proceedings) Act 1981 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bailey v Commissioner of Taxation of the Commonwealth of Australia (1977) 136 CLR 214; [1977] HCA 11
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Bruce v Odhams Press Ltd [1936] 1 KB 697
Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413
Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Goldsmith v Sandilands and Others (2002) 190 ALR 370; [2002] HCA 31
Gunns Ltd v Marr [2005] VSC 251
Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1899] 1 QB 86
McGuirk v University of New South Wales [2009] NSWSC 1424
Meckiff v Simpson [1968] VR 62
PWJI v The State of New South Wales [2020] NSWSC 1235
Shelton v National Roads & Motorists Assn Ltd (2004) 51 ACSR 278; [2004] FCA 1393
Szanto v Bainton [2011] NSWSC 985
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Texts Cited: Nil
Category: Procedural rulings
Parties: Sam Flecknoe (Plaintiff / Respondent)
Pared Ltd (Defendant / Applicant on Motion)
Representation: Counsel:
J Masur (Plaintiff / Respondent)
J Sleight (Defendant / Applicant on Motion)
Solicitors:
Fern Lawyers (Plaintiff / Respondent)
Thompson Cooper Lawyers (Defendant / Applicant on Motion)
File Number(s): 2024/339635
Publication restriction: Nil
On 13 September 2024, Mr Sam Flecknoe (“the plaintiff”) filed a statement of claim (“SOC”), seeking relief pursuant to the Civil Liability Act 2002 (NSW) for a historical child sexual abuse which is alleged to have occurred while the plaintiff was a student at Redfield College, Dural, New South Wales (“the school”) in or about 2008. The SOC listed the Catholic Diocese of Broken Bay as the defendant.
On 24 September 2024, the plaintiff filed an amended statement of claim, listing the Catholic Diocese of Parramatta as the proper defendant (“1ASOC”). The 1ASOC was not otherwise amended.
On 12 November 2024, the plaintiff filed a second amended statement of claim, listing Pared Ltd (“the defendant”) as the proper defendant (“2ASOC”). The 2ASOC was not otherwise amended.
The plaintiff is presently incarcerated at Glen Innes Correctional Centre. On 9 April 2025, Justice Garling granted leave for the plaintiff to institute the proceedings pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW).
On 20 April 2025, the defendant filed a Notice of Motion (“the motion”) seeking that the 2ASOC be struck out, pursuant to r 14.28(1)(a) and/or (b) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), [1] or alternatively, that the plaintiff be ordered under r 15.1(1) [2] of the UCPR to set out further particulars of the claim within the 2ASOC. In relation to the alternative, the defendant specifically sought that the plaintiff be ordered to:
identify the alleged risk of harm with sufficient precision;
particularise the material facts upon which it contends that the risk of harm was foreseeable and not insignificant;
identify and particularise the precautions it is alleged a reasonable person in the position of the defendant would have taken to prevent the occurrence of the alleged risk of harm;
particularise the material facts upon which it is contended that the defendant’s negligence was a necessary condition of the occurrence of the harm and that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused; and
identify and particularise the duties assigned to the perpetrator in his role as teacher at the school to provide religious instruction to students which provided him with the authority, power, trust and control and the ability to achieve intimacy with the plaintiff.
The defendant also sought that the plaintiff pay the defendant’s costs of and incidental to the motion.
This judgment concerns the determination of the motion.
At the outset of the hearing, the parties acknowledged that a proposed third amended statement of claim (“3ASOC”) had been provided to the defendant on 7 July 2025 and was annexed to the affidavit of Samantha Adele McRae sworn 7 July 2025 relied upon in the plaintiff’s case on the motion.
The 3ASOC sets out a claim in negligence for personal injury (institutional abuse) against the defendant, pursuant to Division 4 of Part 1B of the Civil Liability Act 2001 (NSW). The plaintiff alleges that the defendant is liable, both directly (in negligence and breach of a non-delegable duty) and vicariously for the tortious harm caused to the plaintiff.
The 3ASOC pleads that at all material times, the defendant had care, control, operation and management of the school, and employed an unidentified priest (“the priest”) to provide religious instruction to students at the school.
The 3ASOC pleads that the plaintiff was a student at the school between 2005 and 2011, and that in or about 2008 the plaintiff was sexually abused by the priest on one occasion. The abuse is said to have occurred during chapel service during school hours.
In summary, the 3ASOC pleads that the defendant breached its duty of care to avoid foreseeable risks and exercise reasonable care for the safety of the plaintiff, by failing to take various precautions to avoid the risk of harm to the plaintiff. The risk of harm is described as the risk that the plaintiff might suffer physical and psychological injury in the event he was subjected to sexual assault by those employed, engaged or appointed by the defendant to care and supervise the plaintiff while he was a student at the school, being a risk which the defendant knew or ought to have known about. As a result of this breach, the plaintiff had suffered injury, loss or damage.
The plaintiff seeks relief in the way of damages, interests and costs for the harm suffered as a result of alleged sexual abuse.
Following service of the 2SAOC and filing of an appearance by the defendant, on 11 December 2024 several procedural directions were made by consent, including in relation to the service by the plaintiff of further and better particulars, an evidentiary statement, and expert medical evidence.
On 28 March 2025, the plaintiff responded to the defendant’s request of 17 January 2025 for further and better particulars and also served on the defendant an evidentiary statement of the plaintiff dated 21 March 2025.
On 20 January 2025, the plaintiff filed a statement of particulars pursuant to r 15.12 of the UCPR, setting out the particulars of his injuries received, continuing disabilities, past out-of-pocket expenses, future out-of-pocket expenses, loss of income, future economic loss, and any other amounts claimed.
The defendant relied on an affidavit of the defendant’s solicitor, Patrick Gordon Thompson sworn 30 April 2025, which annexed several documents. However, the defendant conceded that this evidence was only relevant to the extent that the judgment concerned an order for costs.
As mentioned, the plaintiff relied on an affidavit from the plaintiff’s solicitor, Ms McRae sworn 7 July 2025, which annexed the following 3 documents:
a copy of a letter served on Thompson Cooper Lawyers, enclosing the plaintiff’s proposed amended statement of claim dated 7 July 2025;
a copy of the 3ASOC; and
a copy of the governing document dated 10 December 1981.
In summary, the defendant made the following submissions on the motion:
In respect of the application to strike out the 3ASOC:
(a) The 3ASOC fails to plead any material facts that give rise to the risk of harm being foreseeable. The risk of harm articulated in the 3ASOC is a generic risk of harm, as opposed to a specific risk posed by the priest due to personal characteristics or proclivities – there are no material facts pleaded to found a case that the priest presented a greater risk than that posed by all staff. (b) Given the alleged abuse was an opportunistic and once off offence and the 3ASOC fails to plead any material facts, matters or circumstances that demonstrate actual or constructive knowledge of the defendant, the precautions which are said the defendant ought to have taken, are embarrassing in that they would not have prevented the eventuation of the abuse and risk of harm.
(a) In relation to vicarious liability, employment is not enough when alleging criminal acts by third parties and the plaintiff must demonstrate that the role given to the person gave rise to the occasion for the abuse. Hence, the facts, matters or circumstances as to the role given to the priest (which would give rise to the occasion) should be particularised. (b) There is an absence of particulars in respect of the material facts, matters or circumstances that would tend to demonstrate that the defendant ought to have known about the risk of harm. The plaintiff should particularise “the evidence” which it intends to rely upon to prove constructive knowledge.
In summary, the plaintiff made the following submissions in response to the motion and submissions of the defendant:
The orders sought by the defendant are not required and are sufficiently answered in the 3ASOC.
The plaintiff does not possess evidence that the defendant had actual knowledge of the specific risk posed by the priest. Rather, the allegation is that the defendant ought to have been aware of the general risk posed by priests within its organisation. To establish constructive knowledge, the plaintiff intends to prove the extent of the knowledge expected to be held by organisations in the position of the defendant at the time of the alleged abuse.
The pleaded precautions are the material facts upon which the plaintiff says a reasonable person in the defendant’s position would have taken to avoid the materialisation of the risk of harm to the plaintiff. Proof of these material facts, for example that the defendant breached its duty of care by failing to ‘adequately supervise’ the plaintiff and its staff, will be proved by evidence, including documentary evidence (following discovery) and expert evidence from a suitably qualified expert.
The plaintiff pleaded that the priest’s role provided him power and authority over the plaintiff, which provided the occasion for the abuse. However, the duties assigned to the priest is a factual matter to be proved by both documentary and witness evidence.
The most recent amendments in the 3ASOC adequately deal with the need for a relationship of employment for a finding of vicarious liability in Australia.
In relation to vicarious liability, this matter can be distinguished from cases such as Bird v DP [2024] HCA 41 where there is an unincorporated diocese or religious order, as the defendant is an incorporated entity and is therefore legally able to be treated like an employee.
(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading--
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
The motion seeks a strike out of the whole of the 3ASOC on the basis of subclauses (a) and (b) – that the pleading discloses no reasonable cause of action and/or has a tendency to cause prejudice, embarrassment or delay in the proceedings.
The function of a pleading is to state all the material facts necessary to formulate and establish a complete cause of action (or defence). This has been referred to as the ‘cardinal rule’ of pleadings: Wheelahan v City of Casey (No 12) [2013] VSC 316 at [25] (per Dixon J).
The power to strike out pleadings for no reasonable cause of action pursuant to 14.28(1)(a) of the UCPR should only be exercised in the clearest of cases, where the claim is “so obviously untenable that it cannot possibly succeed”: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 at 129 (per Barwick CJ). As Cross J observed in Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (“Brimson”) at 942:
“The mere fact that the case is weak and not likely to succeed is not a ground for striking out a validly formulated pleading.” (emphasis in original)
As distinct from an application for summary dismissal under r 13.4 UCPR, a strike out application is concerned with a defective pleading and the court does not need to consider whether the proceedings generally are hopeless: Brimson at 941 (per Cross J). Hence, any allegations in the impugned pleading will be taken as accepted: Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1899] 1 QB 86 (“Hubbuck”) at [91] (per Lindley MR).
A pleading is ‘defective’ and may be struck out where the court is satisfied that, even if all the facts set out in the pleading were proved, those facts would not establish the essential ingredients of a cause of action: Hubbuck at 91 and 94 (per Lindley MR). In other words, “if, on an examination of the pleadings, there is no possibility of the facts pleaded giving rise to a good cause of action then the cause of action may be struck out”: Szanto v Bainton [2011] NSWSC 985 at [135] (per Ward J), citing Dey v Victorian Railway Commissioners (1949) 78 CLR 62; [1949] HCA 1 at 90 (per Dixon J).
A pleading may also be struck out where it has a tendency to cause prejudice, embarrassment or delay in the proceedings, pursuant to r 14.28(b) of the UCPR.
A pleading is embarrassing where it “is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him”: Meckiff v Simpson [1968] VR 62 at 70 (per Winneke CJ, Adam and Gowans JJ); Gunns Ltd v Marr [2005] VSC 251 at [14]-[15] (per Bongiorno J); McGuirk v University of New South Wales [2009] NSWSC 1424 (“McGuirk”) at [30] (per Johnson J).
It has been said that a pleading will be embarrassing if allegations are of such a level of generality, that the defendant does not know the case that has to be met: McGuirk at [33] (per Johnson J), citing Charlie Carter Pty Limited v Shop Distributive and Allied Employees Association (1987) 13 FCR 413 at 417-418 (per French J).
A pleading may also be embarrassing if it contains inconsistent, confusing or irrelevant allegations: Shelton v National Roads & Motorists Assn Ltd (2004) 51 ACSR 278; [2004] FCA 1393 at [18] (per Tamberlin J).
However, where a pleading defect can be cured by amendment, the court ought to grant leave to amend the pleadings rather than exercise the power to strike out: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536-537 (per Kirby P, with whom Hope and Samuels JJA agreed).
I am not persuaded that the 3ASOC should be struck out, for the following reasons.
The defendant relied on the recent comments of Bell CJ in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 to argue that the unique factual circumstances of the present case, in the sense that the alleged abuse by the priest occurred on one occasion with no prior history pleaded, requires the plaintiff to provide greater attention to detail in the formulation of their pleading as to duty of care.
In this respect, Bell CJ observed (Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 at [7] – [10]):
[7] Just as the evaluative inquiry involved in applications for a stay of proceedings in such cases has been described as “unique and highly fact-sensitive” (Willmot at [17]), so too may be the question of the existence of a duty of care and the content of any such duty, if found to exist. As the High Court observed in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50]:
“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.” (footnotes omitted)
[8] The importance of pleading and proving the factual basis for an alleged duty of care was emphasised in Bird in rejecting the respondent’s notice of contention: see at [42]. Justice Leeming’s reasons in the present case highlight the need for close attention to detail in the formulation and proof of a duty of care and its content. That will require, amongst other matters, a precise understanding of the defendant, its juridical nature (if it is not an individual or corporation) and its position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks. For example, one obvious question necessary to be addressed and answered affirmatively in the present case was whether the risk of harm of the kind alleged to have been suffered by the plaintiff was foreseeable by the defendant in the sense that it was not insignificant in 1969 when the sexual assaults upon him were alleged to have occurred. Many superior court judges were not even born at that time. Historical evidence will invariably be required, absent formal admissions. It may be elusive.
[9] As a general proposition, as Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 illustrates, questions of knowledge of risk are an “obvious example” of the kind of question that may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care: see at [64]. Ascertaining the answer to such a question may be acutely difficult in cases where the relevant time period by reference to which the question is to be answered was decades beforehand. That is not to say that an answer may not be ascertained but it is to identify what may be a real forensic difficulty for a plaintiff in such a case. It was a critical difficulty in the present case.
[10] Gleeson CJ’s judgment in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) furnishes another example of the close and detailed analysis often required to be undertaken in order to be satisfied that a relevant duty of care exists. That case involved a question of whether a duty of care was owed to an individual criminally assaulted by third parties on land occupied by the defendant, his Honour noting (at [26]) “the general rule that there is no duty to prevent a third party from harming another”. In the present case, as in Modbury, the duty of care asserted by the plaintiff was in part based upon the defendant’s ownership of the presbytery where the assaults were alleged to have occurred. One important matter emphasised by the Chief Justice in Modbury was that, in the determination of whether or not a duty of care was owed, question-begging by reference to the particular facts of the case was to be avoided: see at [35].
However, it is important to keep in mind that this is not a final hearing of the matter, and this court is precluded from undertaking an interim enquiry about the real merits of the plaintiff’s case.
In my view, while the risk of harm pleaded by the plaintiff is couched as a generic risk, being the risk of adults predating on children in schools, as opposed to a specific risk posed by the priest, this fact does not make the claim so obviously untenable that it cannot possibly succeed.
The material facts set out by the plaintiff in the 3ASOC, while not perfect and illustrating the need for particulars, do formulate a reasonable cause of action in negligence. Hence, the pleading is not defective by reason of disclosing no reasonable cause of action and is therefore not liable to be struck out pursuant to r 14.28(1)(a) of the UCPR.
Secondly, the defendant’s submission is that the pleading is embarrassing because the precautions set out in the 3ASOC would not have prevented the eventuation of the alleged sexual abuse. However, the touchstone of whether a pleading can be described as ‘embarrassing’ is whether it is so unintelligible, ambiguous, vague or general that the defendant would not know what is being alleged against him.
The fact that this court was able to summarise the plaintiff’s pleading at [13] of this judgment, is evidence in and of itself that the defendant’s argument as to r 14.28(1)(b) UCPR cannot be sustained – the pleading is not so unintelligible, ambiguous, vague or general that the defendant would not know what is being alleged.
In my view, the defendant’s criticisms of the 3ASOC as they relate to constructive knowledge, can readily be remedied by the alternative order sought for further particulars, to which I will turn below. So too may the balance of the defendant’s challenge in this respect. In my view, an order for particulars is sufficient at this stage, provided the particulars fix upon the central aspects of the defendant’s case for a strikeout.
The function of particulars is to “fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial”: Goldsmith v Sandilands and Others (2002) 190 ALR 370; [2002] HCA 31 at 371 (per Gleeson CJ), citing Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712–13 (per Scott LJ).
The court has the power to order a party to file particulars of any claim or other matter stated in the party’s pleading pursuant to r 15.10 of the UCPR, which provides as follows:
(1) The court may order a party to file--
(a) particulars of any claim, defence or other matter stated in the party's pleading or in any affidavit relevant to the proceedings, or
(b) a statement of the nature of the case on which the party relies, or
(c) if the party claims damages, particulars relating to general or other damages.
(2) Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file--
(a) if the pleading alleges knowledge, particulars of the facts on which that party relies, and
(b) if the pleading alleges notice, particulars of the notice.
The plaintiff conceded that further particulars should be provided in respect of: (1) the constructive knowledge of the defendant as to the general risk of child predation in schools in 2008, (2) the precautions which the defendant ought to have taken to prevent the risk of harm, and (3) the authority, trust, power or control exerted by the priest by virtue of his role, being particulars concerning vicarious liability and the circumstances giving rise to the occasion of harm.
These concessions were properly made by the plaintiff. As such, there is clearly a basis for the grant of the alternative relief sought by the defendant, as some pleadings plainly require better particulars. I am minded to order the delivery of further particulars on this basis.
The orders will provide for the delivery of further particulars with respect to the three categories outlined above.
The motion to strike out the 3ASOC pursuant to r 14.28 of the UCPR must fail. However, the alternative order sought, that the plaintiff file further particulars pursuant to r 15.10 of the UCPR, will be granted.
As such, the plaintiff should file and serve a further amended statement of claim in the form annexed at Exhibit A (being the 3ASOC), which should also include amendments to provide for the inclusion of further particulars at:
Paragraph 8, as to constructive knowledge and the particulars said to be established at this stage by reference to (a) common knowledge and experience of other institutions in a similar position of the defendant; (b) an accumulation of complaints being made; (c) public notoriety of a particular risk of harm; (d) publications and academic knowledge which might be expected to be read by people in the defendant’s position; and (e) the obviousness or the likelihood of the event happening in the application of common sense (PWJI v The State of New South Wales [2020] NSWSC 1235 at [75] (per Garling J)).
Paragraph 12(a) and (j), as to the specific precautions which the defendant ought to have taken to prevent the risk of harm.
Paragraph 22, as to any particular authority, trust, power or control exerted by the priest by virtue of his role.
That conclusion gives rise to a consideration as to whether each party should pay its own costs. My preliminary view is that a costs order should be made in those terms. In the event the parties do not agree with this preliminary view, I will make provision for further submissions as to costs.
The defendant shall bring in Short Minutes of Order reflecting this judgement within 7 days of the date of delivery of this judgement which shall include:
If there is joint acceptance of the preliminary view as to costs, the Short Minutes of Order should reflect the agreement of the parties.
If there is a dispute as to costs, the defendants shall file and serve the order they propose as to costs accompanying the Short Minutes of Order together with short written submissions in support of the same, and the plaintiffs shall file and serve their reply submissions and the orders they propose within a further 7 days.
Subject to the above, costs are reserved.
**********
While the Notice of Motion filed on 30 April 2025 refers to “Regulation 14.28(1) and/or (b) of the Uniform Civil Procedure Rules 2005 (NSW)”, it appears that the omission of subrule (1)(a) is a mistake. The submissions filed by the defendant on 6 June 2025 refer to r 14.28(1)(a) and/or (b) of the UCPR.
While the Notice of Motion filed on 30 April 2025 sought an order pursuant to r 15.1(1) UCPR, the relevant rule relating to the court ordering particulars is r 15.10 UCPR.
Flecknoe
Pared Ltd [2025] NSWSC 775
(1977) 136 CLR 214
(1987) 13 FCR 413
(1949) 78 CLR 62
(1964) 112 CLR 125
(2002) 190 ALR 370
(1986) 6 NSWLR 534
(2001) 207 CLR 562
(2000) 201 CLR 552
(2000) 205 CLR 254
It was common ground between the parties that the matter would proceed on the basis of the 3ASOC rather than the 2ASOC, and the defendant conceded that it would have no objection if the court were to grant the plaintiff leave to file the 3ASOC.